On the heels of reports that Direct Revenue (makers of wunderspy programs like Aurora) has had a fairly large layoff,  they get another nasty: A court ruling not entirely in their favor.  The ruling can be downloaded here.

The ruling was part of a class action lawsuit by The Collins Law Firm

David Fish, the lawyer leading the charge against Direct Revenue, emailed this comment to me today:

I believe this is a giant first step forward for those who are overwhelmed by the intrusion on their computers of unwanted files and advertisements.  We intend to continue our vigorous prosecution of this case.  Here are some interesting comments from the judge’s 29 page ruling: 
 In permitting claims to go forward for trespass to personal property, consumer fraud, negligence, and computer tampering, the Court noted that “many companies and computer users consider pop-up advertisements and Spyware an Internet scourge” (p. 17) and that the allegations in the lawsuit “reflect the frustration of many computer users” (p. 18). 

 The advertising defendants argued that they had no knowledge of a trespass taking place or “knowledge of DirectRevenue’s unlawful activities”.  However, the Court relied on legal precedent that “it is not necessary that the actor [i.e. the advertiser] should know or have reason to know that such intermeddling [i.e., the pop-up advertisement] is a violation of the possessory rights of another” (p. 19-20). 

 

In response to an argument that individual advertisements can be easily closed, so they cannot cause a legal injury, the Court ruled that this:

 

“ignores the reality of computer and Internet use, and plaintiff’s allegation that part of the injury is the cumulative harm caused by the volume and frequency of the advertisements.  The fact that a computer user has the ability to close each pop-up advertisement as it appears does not necessarily mitigate the damages alleged by plaintiff, which include wasted time, computer security breaches, lost productivity, and additional burdens on the computer’s memory and display capabilities”  (p. 21). 

 

The next step in this case is that the Plaintiff will ask the Court to permit the claims of hundreds of thousands of computer users to be heard in a single lawsuit (i.e. a “class action”). 

 

Suzi at ZDNet blogs more on the issue here.   Quoting Suzi:

 

“..Direct Revenue argued that the court ought to dismiss the case because Plaintiffs (i.e., the users) must have seen the End User License Agreement (EULA) and clicked through to agree to it, thus effectively telling a court of law that its software is always installed with the user’s full knowledge and consent, despite numerous statements indicating otherwise by users seeking help to remove it… The judge, in fact, evidently did not agree.” 

 

Alex Eckelberry